Trump rhetoric expected to spark uptick in visa applications

Local experts are predicting a record amount of H-1B visa applications this year and employers are upping their commitment to new foreign workers as the White House threatens to ratchet down on immigration policy.

The five-day application season commenced this week for skilled worker visas, known as H-1B visas, that allow employers to bring in foreign workers for three years to fill jobs they can't fill with qualified U.S. workers.

The government-sanctioned lottery process has always been a topic of political debate — proponents find it necessary for innovation and development, while opponents view it as a scheme to unseat American workers with cheap foreign labor. But tension over the process has been amped up by President Donald Trump's tough talk on immigration and press releases from the Department of Justice and U.S. Citizenship and Immigration Services warning companies of increased investigations.

Ann Arbor-based software firm Llamasoft submitted 12 H-1B visa applications for the 2018 calendar year, up from other years to get ahead of any changes to the program under the current administration, said Donald Hicks, president and CEO.

"Our employees, those not born in the U.S., are pretty much terrified," Hicks said.

"It's not from any actual policy change, because there's been very little, but from the threatening environment and language from the White House. So we're aggressively protecting our people. We've made the decision to expedite the process by immediately filing for an H-1B instead of waiting like we normally do," he said.

Each year, the federal government makes 65,000 H-1B visas available to workers with bachelor's degrees and an additional 20,000 for foreigners with master's degrees or higher. However, the demand — applications are sponsored and submitted by employers — has far outweighed supply since the Great Recession.

More than 236,000 applications were submitted last year for use in 2017. A computer program randomly chooses which applications can proceed for approval. In 2015, 113,603 H-1B applications were approved — nonprofit and government research workers as well as workers in higher education are exempt from the cap.

This year, that number is expected to climb thanks to the White House's tough talk on visas and free trade.

"I do think the number (of applications) will be higher this year because of President Trump's threats on immigration and because H-1Bs are generally a more secure visa than others," said Michael Nowlan, partner and co-leader of the immigration practice group at Clark Hill PLC in Detroit. "While we haven't seen any discussions about visas tied to the North American Free Trade Agreement, they could be on the table."

The non-immigrant NAFTA Professional visa, known as the TN visa, allows citizens of Canada and Mexico to work in the U.S. for U.S. or foreign employers. TN visa holders may live in the U.S. for their authorization period or in Canada or Mexico and commute across the border for work.

Canadians with a TN visa cross the border into the U.S. roughly 790,000 times each year. Many come to Southeast Michigan to work in the auto sector. Mexicans use it to a lesser extent, with only 79,000 TN visa entries annually, according to data provided by Detroit-based law firm Miller Canfield Paddock and Stone PLC.

Nowlan said many employers are looking to switch their TN visa-holder employees to an H-1B because TN visas can be revoked at the border, don't qualify for holders seeking permanent green card status like H-1Bs and can be undone by a pullout of NAFTA initiated by the president where H-1B changes need congressional approval.

Hicks said when Llamasoft hires a foreign employee he or she tends to hold another more temporary visa and generally wait for that visa to near expiration before applying for an H-1B because it is expensive — costing up to $10,000 for the application fee alone.

"Most of our (foreign-born) employees, especially those out of college, come to us on a two-year work visa," Hicks said. "So that gives them two years to prove themselves and the (H-1B) process is time-consuming and expensive. Now we're looking to sponsor them right away, get the H-1B application out the door as soon as we can and sponsor a green card."

While Hicks says the program is vital for his company to remain competitive and hire — Llamasoft has had jobs remain open for more than a year due to lack of available talent — it has been used for unsavory, yet not illegal means, by major companies, sparking harsh criticism from Trump.

At campaign rallies in 2015 and 2016, Trump introduced laid-off Americans who were asked to train foreign replacements including at The Walt Disney Co., calling the practice "outrageous" and "demeaning," The New York Times reported.

Disney and others reportedly were issued H-1Bs, only to train those employees in the U.S. before shipping those jobs to countries like India. It's not against the rules because the U.S. jobs were eliminated, therefore not displacing them with a foreigner working in the U.S.

Under Trump, ISCIS and DOJ have said they will focus on companies considered "H-1B dependent," meaning 15 percent or more of their workers are on H-1B visas.

The government is particularly interested in technology-outsourcing companies such as Infosys and Tata Consultancy Services, among others. Tata operates offices in Midland and Troy. These companies offer outsourcing services and employ large numbers of workers from India. And as long as they pay their workers at least $60,000 a year, they are not required to prove they could not find an American worker. That figure was established by Congress more than 20 years ago and is significantly lower than most technology worker salaries today.

In Michigan, the average salary for an H-1B visa application, including extensions, in 2015 was $72,687.53, according to the U.S. Department of Labor's Office of Foreign Labor Certification. The most common jobs were computer systems analysts, software developers and computer programmers.

Most Southeast Michigan companies, like Llamasoft, are not considered H-1B dependent. Only 13 of Llamasoft's roughly 250 U.S.-based employees hold an H-1B visa.

Aimee Guthat, a senior attorney at immigration-focused law firm Fragomen, Del Rey, Bernsen & Loewy PLLC in Troy, said her office has fielded more calls since the November election about immigration issues, including H-1Bs.

"It's been insane. There's been extra meetings, more emails, more conference calls," Guthat said. "There's just heightened anxiety over immigration in general from the (administration's) posturing. I'm not expecting warm and fuzzy moving forward. This is a very different climate than I've seen in the 17 years I've been practicing."

Guthat, however, thinks the anxiety may lead to fewer H-1B applications this year, due to immigrants abandoning staying in the U.S. for more friendly countries.

"While there hasn't been much in policy, at least nothing with teeth, the perception on immigration has a lot of people afraid for what the future holds and I've had discussions with people maybe looking to leave and seek employment outside the U.S.," Guthat said. "So I think the application totals could go either way."

For Hicks, this further constricts the talent bottleneck.

"We always have trouble attracting the very best workers. We're in a global talent war, and this posturing is not victimless," Hicks said. "It's suicidal for the American economy. We develop supply chain analysis software for the U.S. military, for God's sake. It really feels like they are out to hurt and destroy my company."